Plainitffs Reply Defendant's Opposition to Motion for Review of 60(b) Motion

8/14/2019 Plainitffs Reply Defendant's Opposition to Motion for Review of 60(b) Motion

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Hiawatha Hoeft-RossMonica Hoeft-RossPO Box 6946(775)544-2721IN PRO SE

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA*****

Hiawatha Hoeft-Ross Et. Al.CASE NO. CV-N-050121 LRH(VPC)

Plaintiffs,

vs.

Werner and Christel Hoeft, Et Al.

Defendants._______________________________/

PLAINTIFFS REPLY TO DEFENDANTS OPPOSITION TO PLAINTIFFSMOTION FOR REVIEW BY THE DISTRICT COURT OF OBJECTION

TO MAGISTRATES DECISION REGARDING 60(b) MOTION

COMES NOW PLAINTIFF HIAWATHA HOEFT-ROSS , MONICA HOEFT-ROSS,

MARTIN HOEFT-ROSS AND KIRSTEN HOEFT-ROSS and reply to DEFENDANTS

OPPOSITION TO PLAINTIFFS MOTION FOR REVIEW BY THE DISTRICT

COURT OF OBJECTION TO MAGISTRATES DECISION REGARDING 60(b)

MOTION. Fed.R.Civ.P. 72(b) does not apply to the action at bar, and as far as 28 USC Sec 636

(b)(1), Plaintiffs are already aware of this section as it was hashed through in previous papers.

Counsel brings nothing new and in truth and in opposition to the action at this table.

Defendants counsel, Michael Kealy, did not file a mandatory disclosure of witnesses and

exchange of documents until September 8 , 2006 well after the mandatory 30 day requirementth

Defendants purposely waited to file until well after the 30 day mandatory disclosure filing

requirements but continued to inform the Court that the Defendants were diligent, while the

Plaintiffs were not. There is no other reason, either rational or apparent, why Counsel would concea

the July 27 2006 mandatory disclosure list of the Plaintiffs.th


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indefinite continuance, but did not receive an answer by November 27th 2006. Plaintiff then

received a letter from counsel stating that they would not stipulate to an indefinite continuance, but

would seek a summary judgement. Plaintiff wrote back to Mr. Kealy, Defendants' counsel and stated

that he regretted that a stipulation cannot be reached without court intervention. Plaintiff Monica

Hoeft-Ross wrote Mr. Kealy on January 3rd 2007, stating that Hiawatha Hoeft-Ross' condition had

not stabilized and was awaiting their summary judgement. Plaintiffs received a response from Mr

Kealy on January 10th 2007, wherein he stated he was confused about Plaintiffs awaiting a summary

judgement from counsel and discussing a resolution. As stated before, Plaintiff Hiawath

Hoeft-Ross was in no condition to discuss any such resolution as he was not mentally capable of

resolving legal matters.

Dr. John N. Chappel wrote a declaration in that Plaintiff Hiawatha Hoeft-Ross has not been

able to function well enough to attend court. Plaintiff Hiawatha Hoeft-Ross has had another

appointment with Reno Diagnostics for additional diagnostic medical examinations to be performed

due to his non-responsiveness to previous medical procedures

Plaintiff simply did not show up for the case management conference on January 18th

2007, But rather Plaintiff was too ill to attend and Plaintiff out of excusable neglect thought he

mailed that letter from John N. Chappel M.D. to the Honorable Valerie P. Cooke to explain his

medical situation. Plaintiffs had agreed that Plaintiff Hiawatha Hoeft-Ross would be the only party

speaking on their behalf in order to minimize confusion that might arise from multiple pleadings.

Plaintiffs did not voluntarily waive their right to conduct discovery and did not voluntarily refuse

to attend the meeting. But Plaintiffs were confused for two reasons: 1) Hiawatha Hoeft-Ross long-

standing illness and 2) the misrepresentation that opposing counsel will immediately seek a summary

judgement which would render moot the January 18 2007 meeting. Judge Cooke exceeded herth

discretion by sanctioning Plaintiffs so harshly for a first-time offense which they had made through

excusable neglect. Counsel Michael Kealy also contributed to this by not being candid towards this

tribunal.

Rule 172 Candor Toward the Tribunal

[4] In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the


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lawyer which will enable the tribunal to make an informed decision, whether or not the facts are

adverse.

Mr. Kealy appeared at the Case Management Conference on January 18 , 2007. He providedth

documentation and correspondence he had received from Plaintiffs. However he intentionally failed

to provide a complete history of the documentation and correspondence as shown in Plaintiffs

exhibits. Mr. Kealy also failed to note for the court the fact that Plaintiffs had responded to the

mandatary disclosure requirements and the proposed Discovery Plan prior to any action being taken

on behalf of his client. This omission falsely led the Court to believe that Plaintiffs were non-

compliant with all discovery matters. Additionally the omission of the documentation and

correspondence carried on between Plaintiffs and defendants counsel could only lead the Court to

believe that Plaintiffs were refusing to comply with court orders and thus appeared to b

contemptuous of the Court. This may be the basis for the extreme sanctions imposed by the Court

on Plaintiffs. Clearly the AbA Model Code of Professional Responsibility cited above requires al

members of the ABA to be completely candid with the Court and to provide information to the Court

which may not always be in the best interest of their client(s).

Rule 173 Fairness to Opposing Party and Counsel

A lawyer shall not:

[1] Unlawfully obstruct another partys access to evidence or unlawfully alter, destroy orconceal

a document or other material having potential evidentiary value. A lawyer shall not counsel or

assist another person to do any such act; (emphasis added)

Mr. Kealy concealed from the Court all documentation and correspondence between the parties

which showed an ongoing effort by the Plaintiffs to keep Mr. Kealy apprized of the unfortunate

results from the accident suffered by the Plaintiff Hiawatha Hoeft-Ross. If Mr Kealy had notified the

Court of the information in his possession the Court would have been in a better position to act in

a manner consistent with the long established case law involving medical disabilities which

constitute excusable neglect. Mr. Kealy was fully aware that Plaintiff Hiawatha Hoeft-Ross was

under medical orders to not engage in any legal conflict.

[4] In pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort


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to comply with a legally proper discovery request by an opposing party;

Mr. Kealy was dilatory in corresponding with plaintiffs and in several instances ignored discovery

requests outside of the purview of this Court as required by the FRCP: the movant (Plaintiffs) have

in good faith conferred or attempted to confer with other affected parties in an effort to resolve the

dispute without court action, or failing to file a motion to compel, whereas Mr. Kealy has been

totally unamenable to negotiation which would avoid consuming the time of the Court. As Plaintiff

states on December 4 , 2006, in response to Mr. Kealys letter of November 28 , 2006, Since youth th

appear unwilling to stipulate to indefinite continuance or stabilization of Mr. Hoeft-Ross medica

conditions, we will prepare a motion before the court. We regret that we cannot stipulate to an

agreement without intervention of the court.

Mr. Kealy placed additional stress on Plaintiff Hiawatha Hoeft-Ross by offering a settlement

contingent upon Plaintiff Hiawatha Hoeft-Ross obtaining a medical release or he faced with

defending a motion for summary judgement..

Mr. Kealy also failed to do the Certification of Counsel pursuant FRCP 37(a)(2) and/or a

motion to compel and should be sanctioned for not following the rules of court, as there is a higher

standard placed on practicing attorneys than onpro-ses. Plaintiffs wrote to Mr. Kealy that they had

tried to work with Mr. Kealy outside of this court but unfortunately werent able to do so due to the

(in)action of Mr. Kealy. Mr. Kealy was under the Model Code of Professional Responsibility to do

his best to work with Plaintiffs in keeping discovery outside of this Court. He did not. Instead, he

immediately, on September 8 , 2007, without negotiations with plaintiffs, submitted his proposedth

discovery plan, and did not file a certificate of making good faith attempts for Meet and Confers

without judicial help pursuant to FRCP 37(a)(2) . Mr. Kealy even failed to take a more drastic step

of filing a motion to compel. It is for these actions or lack thereof that Mr. Kealy should be

sanctioned for being not candid with this tribunal and unfair to opposing counsel (Plaintiffs).

Mr. Kealy should be sanctioned for making malicious attacks on the Plaintiffs trying to

prosecute their case. Although Mr. Kealy may have a higher standing in the community than the

likes of the Plaintiffs, that does not allow him to denigrate plaintiffs attempts at securing every bi

of information they may attain to prosecute their case. Mr. Kealy States that Mr. Hoeft-Ross


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sought broad judicial notice of some ill-defined matters, claims or information submitted in other

litigation filed in federal court in 2002. Firstly, counsel over states the matter to make the issue

seem more dramatic than it really was. Plaintiff Hoeft-Ross did not seek broad judicial discretion

but merely sought judicial notice on a publicly filed document that provides medical diagnoses his

condition very well and was submitted to the Honorable Valerie P. Cooke who has personal

knowledge of this document so that she may refresh her memory regarding the major disorders Mr

Hoeft-Ross suffers from. Here again, Mr. Kealy resorts to besmirching Plaintiff Hoeft-Ross

evidence, stating that it was ill-defined. This document was generated by two prominent physicians

over years of testing and evaluation to come to a very well received and thorough document. It is

Mr. Kealy who is displaying his ignorance. The Magistrate Judge was beyond her discretion in

denying sanctions towards Mr. Kealy who obviously broke the Model Code of Professional

Responsibility in seeking out a victory for his clients. Mr. Kealys instant Motion is just as

amorphous as he purports the request for judicial notice to be. The fact of the matter is that Counsels

motion is devoid of any case law demonstrating the judicial definition or the acceptable parameters

of the points and authorities he cites.

II

LAW AND ARGUMENT

A. THE MAGISTRATES ORDER IS NO CLEARLY ERRONEOUS OR CONTRARY TO

LAW

Counsel only here reiterates that the magistrate has broad discretion to conduct pre-tria

matters and non dispositive matters inter alia. Then goes into discovery matters, but at no time does

Counsel directly address the basic tenets set forth in Plaintiffs reconsideration of the 60(b) motion

Counsel merely reiterates the same old reasons as in his initial motion to deny Plaintiffs a 60(b)

motion - that the Magistrate did not act in excess of her authority. Counsel addresses none of the

theories advanced by the plaintiffs, instead counsel leaves us with a few remaining housecleaning

items, that counsel should not be able to raise since he loses his rights to bring these actions forward

since he did not raise them ab initio.

Plaintiffs will address these issues to preserve their rights for this litigation. Counsels main


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concern seems to be why the remaining three Plaintiffs did not show for the case management

conference. First of all, besides the established medical issues, Plaintiff Hiawatha Hoeft-Ross did

not attend the meeting due to medical advice and under the mistaken understanding that it was only

he who was supposed to be attending the meeting, since the federal issues came first. The remaining

Plaintiffs have only State issues of which the Court took jurisdiction. Plaintiff Monica Hoeft-Ross

is under a Doctors supervision and is to avoid major stressors and receives medication to ameliorate

the effects of unavoidable stressors, as quoted in a previous motion, and is noticed under John N.

Chappels M.D. declaration of November 1 , 2006, which states that plaintiff Monica Hoeft-Rossst

is under the care of the Nevada Mental Health Dept.. The children, whether the age of majority or

minority, are still under the auspices of their parents, and are not allowed to enter into any legal

agreements or stipulations without their parents presence as long as they live in the household. Mr

Kealy who is very artful, will be certain to ensure that the Plaintiffs lose all rights as he has done in

the past if. As set forthsupra Plaintiff Hiawatha Hoeft-Ross has been designated as counsel and the

children will only attend Court when ordered to do so or their testimony is necessary in order to

avoid exacerbation of the familial situation.

Then Counsel goes on a rant that Plaintiff Hiawatha Hoeft-Ross only offers incomplete

cryptic, unauthenticated, and vague material which purport to be physicians papers, and contain

conclusory statements about Hiawatha Ross. Let it be known to counsel, that notes by physicians

are made under penalty of perjury or else they can lose their license:

NRS 630.3062 Failure to maintain proper medical records; altering medical records; making false

report; failure to file or obstructing required report; failure to allow inspection and copying of

medical records; failure to report other person in violation of chapter or regulations. The following

acts, among others, constitute grounds for initiating disciplinary action or denying licensure

(emphasis added)

1. Failure to maintain timely, legible, accurate and complete medical records relating to the

diagnosis, treatment and care of a patient.

2. Altering medical records of a patient.


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3. Making or filing a report which the licensee knows to be false, failing to file a record or

report as required by law or willfully obstructing or inducing another to obstruct such filing.

4. Failure to make the medical records of a patient available for inspection and copying as

provided in NRS 629.061.

5. Failure to comply with the requirements of NRS 630.3068.

6. Failure to report any person the licensee knows, or has reason to know, is in violation of the

provisions of this chapter or the regulations of the Board.

(Added to NRS by 1985, 2223; A 1987, 199; 2001, 767; 2002 Special Session, 19; 2003, 3433)

Let it be also known to counsel that a declaration carries the same weight as an affidavit :

28 U.S.C. 1746. Unsworn declarations under penalty of perjury:

Wherever, under any law of the United States or under any rule, regulation, order, or requirement

made pursuant to law, any matter is required or permitted to be supported, evidenced, established

or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing

of the person making the same (other than a deposition, or an oath of office, or an oath required to

be taken before a specified official other than a notary public), such matter may, with like force and

effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate

verification, or statement, in writing of such person which is subscribed by him, as true under penalty

of perjury, and dated, in substantially the following form:

(1) If executed without the United States: I declare (or certify, verify, or state) under penalty of

perjury under the laws of the United States of America that the foregoing is true and correct

Executed on (date). (Signature).

(2) If executed within the United States, its territories, possessions, or commonwealths: I declare

(or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed

on (date). (Signature).

All materials are not subjective because they are either 1) Doctors notes which must conform

to the Medical Examiners Board of Authentication; 2) mail, which was sent via certification or ; 3)

by third party proof, or 4) Mr. Kealys and/or his clients own writings.

Counsel should look at his blatant non-compliance with the rules and have the Judge


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determine that Defendants are not entitled to any relief and that the Magistratess rulings are clearly

erroneous and contrary to law pursuant toPioneer Investment Svcs Co.

B.

THE MOTION FOR REVIEW IS AN UNTIMELY ATTEMPT TO OBTAIN REVIEW

OF THE JANUARY 18, 2007 ORDER

This is a timely objection to the Magistrates ruling and therefore review is required U.S.W

v. New Jersey Zinc Co., 828 F.2d 1001 (3 Cir 1987); Moores Federal Practice 72.11[1][a]. Therd

final order and/or judgement came from the Magistrate on April 10 , 2007 and the plaintiffs receivedth

the judgement and/or order on April 11 , 2007.th

Counsel states that the Plaintiffs were not entitled to engage in any more discovery due to

their non-compliance. This non-compliance, in addition to the Plaintiffs ailments were part and

parcel the responsibility of Michael Kealy who wrote in or about January that counsel apparently did

not believe Mr. Hoeft-Ross letters and stated he would be filing a summary judgement request with

the District Court immediately. Based on Mr. Kealys written statements, Mr. Hoeft-Ross believed

the hearing scheduled for the 18 of January 2007 had been vacated since the Summary Judgementh

would preempt that hearing. That is misleading and a falsehood and an attempt to get Plaintiffs

sanctioned by and through deceit, by remaining silent on the issue of January 18 , 2007. In anth

action of deceit, it is true that silence as to a material fact is not necessarily , as a matter of law

equivalent to a false representation. But Mere silence is quite different from concealment; aliud es

tacere, aliud tcelare: A suppression of truth of the truth may amount to a suggestion of false hood

and if with intent with intent to deceive, either party to a contract of sale or conceals or suppresses

a material fact which he is good faith bound to disclose, this evidence of and equivalent to a false

representation, because the concealment or suppression is in effect a representation, is in effect a

representation that what is disclosed is the whole truth. The gist of the action is fraudulently

producing a false impression upon their mind of the other party; and if this result is accomplished

it is unimportant whether the means of accompanying it are words or acts of the defendants , or his

concealment or suppression of material facts not equally within the knowledge or reach of the


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plaintiff. Stewart v. Cattlemans Ranche Company ,128 US 383; 9 S.Ct. 101; 32L.Ed. 439; 1888

US LEXIS 22224.

C. PLAINTIFFS CONFUSE THE MAGISTRATES ORDER WITH A DEFAULT

Counsel states that Plaintiffs devote several of their passages of their argument to suggest that

the magistrate entered some type of judgement by default. Then counsel goes on to say that these

arguments are misplaced because the magistrate did not enter any judgement by default or otherwise

Plaintiffs would like to point to Blacks Law. That the magistrate issued an order on January 18th

2007, and an order according to Blacks Law may also be a judgement Traders & General Ins. Co.

v. Baker Tex.Civ.App., 111 S.W. 2d 839, 840.

D. THE MAGISTRATES DECISIONS NOT TO TAKE JUDICIAL NOTICE IS NOT

CLEARLY ERRONEOUS

Judicial notice as per Blacks law: The act by which a court, in conducting a trial or framing

its decision, will, of its own motion or on request of a party, and without the production of evidence

recognize the and truth of certain facts, having bearing on the controversy at bar, which, form their

nature are not properly the subject of testimony , or which are universally regarded as established

by common notoriety, e.g., the laws of the state, international law, historical events, the constitution

and the course of nature, main geographical features , etc.. Such notices excuses party having burden

of establishing fact from necessity of producing formal proof. (Emphasis added) Hutchinson v. State

447 N.E.2d 850, 854. Fed.Evid.Rule 201

Will - Blacks Law : An auxiliary verb having the mandatory sense of shall or must. It is a word

of certainty while the word may is one of speculation and uncertainty.

Together with these two terms the Magistrate Judge has no choiceBUTto take judicial notice

when requested by one of the parties.

According to Blacks Law, common law and statute, Plaintiff has the burden of proof showing

excusable neglect due to medical excuse and the Judge Magistrate must issue a judicial notice in


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order to prove the on-going medical conditions. This type of material is exactly what Fed.Evid.Rule

201 is made to do. Plaintiffs again state that the Magistrate Judge has exceeded her jurisdiction

And as stated before, Doctors reports, whether they state on their face or not are under penalty of

perjury or else the Doctors so subscribing shall be subjected to punishment.

The material was not given over during discovery because it is a public document and

available for counsel to discover and copy on its own accord.

III.

CONCLUSION

Michael Kealy should be sanctioned according to LR 7-2 (d): The failure of a moving party

to file points and authorities in support of the motion shall constitute a consent to the denial of the

motion. The failure of an opposing party to file points and authorities in response to any motion

shall constitute a consent to the granting of the motion;by having the court grant the Plaintiffs

motion for a 60(b). Since Counsel addresses none of the points or authorities in the Plaintiffs motion

for review and again, submits this puerile piece of paper that doesnt warrant being before this

Honorable Court. As such, Plaintiffs have made out aprima facie showing by and through their

pleadings and papers that they have made a demonstration of excusable neglect due to good cause

of a medical nature pursuant to the premier case ofPioneer Investment Svcs., and are as such

entitled to a 60(b) motion under the Motion for Review by the District Court of Objection to

Magistrates Decision Regarding 60(b) Motion. The motion by Mr. Kealy is bare bones, and Mr

Kealy has attempted to take two bites of the apple. Any new issues raised should be stricken

Plaintiffs are before this court, sick and barely able to make this response in the time allotted

Defendants once again are forcing Plaintiffs to litigate against Doctors orders and counsel should

also be sanctioned for the unnecessary litigation. For the above reasons and points and authorities

stated herein and all the pleading, papers on file, with the exception of those filed before the First


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Since an amended pleading supersedes the original, facts not incorporated into the amended pleading are considered1

functus officio. See 6 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE 1476 (2d

ed. 1990); Parry v. Mohawk Motors of Mich., Inc.,236 F.3d 299, 306-07 (6thCir.2000) (when a plaintiff files amended complaint

new complaint supersedes all previous complaints and controls the case from that point forward)(citing In re Atlas Van Lines, Inc.

209 F.3d 1064, 1067 (8thCir.2000); Duda v. Board of Educ. of Franklin Park Pub.Sch. Dist. No. 84, 133 F.3d 1054, 1057

(7thCir.1998).

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amended complaint Plaintiffs motion shall be granted.1

DATED:

____________________Hiawatha Hoeft-Ross

____________________Monica Hoeft-Ross


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PROOF OF SERVICE BY MAIL

Pursuant to FRCP 5(b), I certify that, I on May 18 2007, I, Monica Hoeft-Ross deposited in the U.Sth

Mail at Reno, Nevada, in a sealed envelope, a PLAINTIFFS REPLY TO DEFENDANTS

OPPOSITION TO PLAINTIFFS MOTION FOR REVIEW BY THE DISTRICT COURT OF

OBJECTION TO MAGISTRATES DECISION REGARDING 60(b) MOTION and

declarations of Hiawatha hoeft-Ross, Monica Hoeft-Ross Kirsten hoeft-Ross and Martin Hoeft-Ross

in support ofREPLY attached hereto, a true and correct copy postage prepaid thereon, addressed

to:

Michael Kealy50 West Liberty Street Suite 750Reno, NV 89501

_____________________________ Monica Hoeft-Ross

Documents

Plainitffs Reply Defendant's Opposition to Motion for Review of 60(b) Motion